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• Board Meeting Date: 7/11/2007
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

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on all four questions by finding: (1) augmentation is a beneficial use of water in Colorado; (2)
the recharge of tributary lake wells is also a beneficial use; (3) the Engineers have standing to
raise the issue of injury to the CWCB's instream flow rights by changes to a plan for
augmentation arising after the CWCB has stipulated out of a case; and (4) the CWCB may
actively rejoin this case in order to defend its existing stipulation. The State remains open to
settlement negotiations. However, difficult administrative issues relating to the subordination of
water rights have prevented reaching a settlement to date.

8. Application of CWCR Fall River ISF 95CW256

This is an instream flow application on the Fall River in Clear Creek County which is set for a 3-
day trial from August 27_29th. Central City and Agricultural Ditch and Reservoir Company are
the remaining opposers in this case, though Ag Ditch has indicated it will not proceed to trial in
this matter.

Central City has asserted that there is insufficient water available for the claimed ISF reach and
that Staff has not demonstrated that the natural environment can be protected to a reasonable
degree. Central City is also challenging the CWCB's claimed appropriation date of July 24, 1995
for the Fall River ISF on the grounds that the priority date is actually December 27, 1995, the
date of the Board's water court filing. Staff and the AG's office maintain that the CWCB may
base its priority date on the date the Board approves Staff's final recommendations at its general
meeting.

On behalf of the CWCB, the AG's office recently filed two Motions for Detennination of
Question of Law. The first motion raised the issue of whether the Board's Fall River ISF right, if
decreed, would be senior to the Central City Fall River pipeline exchange. The second motion
argued that the court could only review the Board's 1995 detelminations regarding the ISF
appropriation for an abuse of discretion - not de novo as Central City asserts.

The parties have recently been engaged in settlement negotiations and will discuss the terms of
the proposed settlement in Executive Session at the Board meeting. Consultants for Central City
will meet in the coming weeks with Staff and CDOW to finalize the technical aspects of the
proposed settlement agreement.